HONEYWELL INTERNATIONAL INC.(OWNER) et al.

Patent Trials and Appeals Board

May 1, 2020

2020001222 (P.T.A.B. May. 1, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
95/002,030 08/20/2012 8065882 9404.21591-REX 2300
116637 7590 05/01/2020
HONEYWELL/FOX/BANNER
Patent Services
115 Tabor Road
PO Box 249
MORRIS PLAINS, NJ 07950
EXAMINER
XU, LING X
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
05/01/2020 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

MEXICHEM AMANCO HOLDING S.A. de C.V.
Requester and Respondent

v.

HONEYWELL INTERNATIONAL INC.
Patent Owner and Appellant
____________

Appeal 2020-001222
Reexamination Control 95/002,030
Patent US 8,065,882 B21
Technology Center 3900
____________

Before JEFFREY B. ROBERTSON, RAE LYNN P. GUEST, and
JANE E. INGLESE, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION UNDER 37 C.F.R. § 41.77(f)

1 US Patent 8,065,882 B2 issued on November 29, 2011 to Rajiv R. Singh,
et al. (hereinafter “the ’882 patent”).
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This is a decision under 37 C.F.R. § 41.77(f). In a Decision on
Request for Rehearing entered March 21, 2019 (“Rehearing Decision”), the
Board entered a new ground of rejection under 37 C.F.R. § 41.77(b) for
claims 1–12, 14–17, 21–25, 28, 30–59, 61–63, 65–69, 76–79, 81, 82, 86,
125, and 127 by designating several rejections from the FINAL DECISION
ON APPEAL UNDER 37 C.F.R. § 41.77(f) mailed January 2, 2018 (“2018
Decision”) as new grounds. Rehearing Decision 15. Pursuant to 37 C.F.R.
§ 41.77(f), this decision is deemed to incorporate the earlier decision, except
as indicated.
In response to the Rehearing Decision, Patent Owner Honeywell
International Inc. (“Patent Owner”) requested reopening of prosecution
under 37 C.F.R. § 41.77(b)(1) in its RESPONSE UNDER 37 C.F.R.
§ 41.77(b)(1) REQUESTING REOPENING OF PROSECUTION filed May
21, 2019 (hereinafter “Request to Reopen” or “Req. to Reopen”). The
Request to Reopen proposed amendments to claims 1, 4, 31, and 35, and
proposed to cancel claims 3 and 18, and also presented a Declaration of Dr.
Darryl DesMarteau with exhibits dated May 17, 2019 (hereinafter
“DesMarteau Declaration”) and a Declaration of Dr. Thomas J. Leck with
exhibits dated May 20, 2019 (hereinafter “Leck Declaration”) as evidence in
response to the new grounds of rejection. (Req. to Reopen i–iv, 1–39.)
Third Party Requester Mexichem Amanco Holding S.A. de C.V.
(“Mexichem”) filed RESPONSE TO REQUEST TO REOPEN on June 21,
2019 (hereinafter “Requester’s Comments” or “Req. Comm.”) in response to
the Patent Owner’s Request to Reopen (see generally Req. Comm.) under
37 C.F.R. § 41.77(c).
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In an Order remanding the case to the Examiner, Patent Owner’s
Request to Reopen including the amendments to the claims, evidence, and
exhibits thereto were entered for consideration by the Examiner. (ORDER
REMANDING INTER PARTES REEXAMINATION UNDER 37 C.F.R.
§ 41.77(d) TO THE EXAMINER mailed July 19, 2019.) In addition,
Requester’s comments and accompanying exhibits were also entered for
consideration by the Examiner.
An Examiner’s Determination under 37 C.F.R. § 41.77(d) was issued
on September 16, 2019 (hereinafter, “Ex. Det.”) in which the Examiner
determined that Patent Owner’s Response was insufficient to overcome the
new rejections set forth in the Decision. Ex. Det. 6.
Patent Owner filed a response to the Examiner’s Determination.
(RESPONSE TO THE EXAMINER’S DETERMINATION UNDER
37 C.F.R. § 41.77(e) filed October 16, 2019, hereinafter, “PO 41.77(e)
Resp.”) Requester Mexichem filed a reply to Patent Owner’s 37 C.F.R.
§ 41.77(e) response. (THIRD PARTY REQUESTER’S COMMENTS ON
PATENT OWNER’S RESPONSE TO EXAMINER’S DETERMINATION
UNDER 37 C.F.R. § 41.77(e) filed November 18, 2019, hereinafter “Req.
41.77(e) Rep.”).
For the reasons that follow, we REVERSE the rejections of the
claims.

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DISCUSSION
Claim Amendments
Patent Owner explains that by virtue of the amendment to claim 1, all
pending claims require a refrigerant that is an unsaturated, three-carbon
compound having a –CF3 terminal group. Req. to Reopen 6. Patent Owner
explains further that claims 31 and 35 have been amended “to focus on the
stability achieved by the present invention when the condenser is operated
over a temperature range that includes 150°F (see claim 31), especially when
the lubricant is a polyalkylene glycol lubricant used in combination with a
refrigerant consisting of 1234yf (see claim 35).” Id.

Reasonable Expectation of Success
In its Request to Reopen prosecution, Patent Owner contends the
Board’s analysis of a reasonable expectation of success in combining an
unsaturated refrigerant compound (a hydrofluoroolefin (HFO)) with a
lubricant in a method of cooling air in an automobile is flawed. Req. to
Reopen 7–8. In particular, Patent Owner argues all pending claims are
limited to methods of cooling or conditioning air in an automobile, which
involve extreme conditions, and that automobile air conditioners (AAC)
involve specialized equipment. Id. at 8–9. Patent Owner contends that
because of extreme conditions and distinct differences in design and in the
materials used in AAC systems, it is even more difficult to achieve
acceptable levels of stability for AAC than in other heat transfer
applications, which makes the need to avoid reactive refrigerants and
reactive lubricants uniquely important. Id. at 9–10.
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Patent Owner relies on the DesMarteau Declaration in order to expand
upon the explanation provided by Dr. Chambers2 regarding how HFOs and
PAGs would have been expected to react and to contend that Inagaki’s
disclosure does not suggest HFO-1234yf is stable enough for air
conditioning applications, or AAC specifically. Id. at 10–11, 13–21 (citing
DesMarteau Dec. ¶¶ 13–17, 31–47, 49–51, 60, 79). Patent Owner argues
that the Leck Declaration provides evidence that the Board improperly relied
on proposed teachings of stabilizers in the prior art as a teaching of a
reasonable expectation of success in applying the claimed combination of
refrigerant and lubricant in an method for cooling air in an automobile. Id.
at 12–13, (citing Leck Decl. ¶¶ 13–24, 27, 33). Patent Owner contends that
the Board misinterpreted the claims as not requiring any degree of stability
or reactivity in the recited methods for cooling air in an automobile. Id. at
13–14. Further, Patent Owner argues Omure does not provide a reasonable
expectation of success in combining HFO-1234yf and PAG in AAC
applications. Id. at 22–25 (citing DesMarteau Decl. ¶¶ 59, 62, 63, 66, 67,
73–79, 88; Leck Decl. ¶ 33).

Opinion
We have reconsidered the evidence of record, as well as Patent
Owner’s new evidence and arguments, and find them persuasive that one of
ordinary skill in the art would not have had a reasonable expectation of

2 Declaration of Richard D. Chambers executed March 27, 2013 and
attached exhibits (see Exhibit I to Patent Owner’s Appeal Brief filed March
30, 2015).
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success in combining HFO-1234yf with PAG lubricants disclosed in the
prior art in a method of providing the cooling of air in an automobile.
In particular, we credit the new evidence submitted by Patent Owner,
as well as evidence already of record in this reexamination proceeding,
which establishes that the application of refrigerants in automobile air
conditioning requires special consideration of the confined and moving
space environment of an automobile. Such considerations include the
amount of vibration an automobile air conditioning system must endure; the
use of flexible rubber/elastomeric hoses and seals common in automobile air
conditioning systems, but uncommon in other types of air conditioning; and
the high rate of leakage in automobile air conditioning systems relative to
residential air conditioning systems.3 Leck Decl. ¶ 24; First Bivens Decl.
¶ 17; Second Bivens Decl. ¶¶ 5, 9; see Req. to Reopen 9–10, 17, 32 (citing
First Bivens Decl. ¶ 9; Fourth Bivens Decl. ¶¶ 3, 6; Winick Decl. ¶ 4).
Our reasoning is not inconsistent with the Board’s determination in
the Rehearing Decision (pages 8–9; see also 2018 Decision 15) that with
respect to condenser operation temperature ranges recited in some of the
claims on appeal, the use of stabilizers was a known method of stabilizing
refrigerant compositions. Upon reconsideration of the evidence of record
submitted by Patent Owner, we are of the view that all extreme aspects of

3 Our determination in this regard is consistent with the Board’s
determination in a related AIA proceeding that AAC is a distinct field from
the general field of heating and cooling applications and that as of April 29,
2004, was an unpredictable art. Arkema Inc. v. Honeywell International
Inc., PGR2016-00011, PGR2016-00012, Paper No. 54 at 20, 33 (PTAB
August 31, 2017) (Final Written Decision).
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the AAC environment, and not temperature alone, reflect on whether one of
ordinary skill in the art would not have had a reasonable expectation of
success that such a combination would be suitable in the AAC environment.
See Leck Declaration ¶¶ 24, 34, 36. That is, even though HFO-1234yf
possesses a high critical temperature as disclosed in Podchernjaev4 (Req.
Comm. 4, Req. 41.77(e) Rep. 12–13 citing Podchernjaev, Table 1), which is
desirable for AAC systems, we are of the view that high critical temperature
alone, while indicating a desirable characteristic for AAC systems and
providing a reason to use HFO-1234yf, is insufficient to provide a
reasonable expectation of success that HFO-1234yf combined with a
lubricant would have been suitable for the AAC environment.
Requester pointed out that there is evidence that AAC systems
function much the same way as in other types of air conditioning systems
(RESPONSE TO REQUEST FOR REHEARING filed February 28, 2018,
citing Langley, Heating, Ventilating, Air Conditioning and Refrigeration,
Prentice Hall (1993) (“Langley”), p. 660; see 2018 Decision 10–11, 14).
That same evidence, however, indicates that there are “major differences”
between AAC systems and residential and commercial air conditioning
systems, including: “(1) the manner used to combine the different
components, (2) the manner used to drive the compressor, (3) the fast
temperature change inside the automobile, and (4) the complex system of air
control dampers used on an automobile.” Langley, p. 660. Therefore,
although the Board cited Magid as evidence that AAC systems operate at

4 RU 2073508, published February 10, 1997, and English Translation,
submitted with Requester’s 41.77(c) Resp. as an exhibit.
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condenser temperatures of 122 °C to 158 °C (2016 Dec. 25–26; 2018
Decision 9–14), upon reconsideration, we are of the view that a refrigerant’s
high critical temperature does not provide a reasonable expectation of
success for a combination of refrigerant and lubricant in a method of cooling
in AAC systems when weighed in light of the general teaching of the unique
environment of AAC systems.
Upon reconsideration, we are also not persuaded by Requester’s
arguments regarding the known use of PAG in AAC systems and known
mitigation of PAG stability concerns in such systems. Req. Resp. 5–6, Corr
2019 Decl. ¶¶28–35, Sandford Decl. ¶¶ 22, 26–28. In particular, Requester
relies on the Corr 2019 Declaration and Sandford Declaration as evidence
that PAG lubricant properties, such as hygroscopic and oxidation properties,
can be adjusted by controlling the nature of polyalkylene backbone, capping
the hydroxyl end groups, and adding antioxidants, a type of stabilizer. Corr
2019 Declaration, ¶ 29, Ex. C, p. 238–239; Req. Comm. 1, 3, 5, 14; Corr
Decl. ¶ 26, 28-32; Sandford Decl. ¶ 25. Such techniques only address the
lubricant element of the claim and not Patent Owner’s evidence directed to
the skilled artisan’s expectations of using a combination of HFO-1234yf and
PAG in the unique environment of AAC systems.
Requester argues that the Board found previously Inagaki discloses
HFO-1234yf as a refrigerant that is compatible with lubricants and the ’882
Patent does not assign any unexpected compatibility of HFO-1234yf with
PAG lubricant in AAC environments. Rehearing Decision 4–5, 7; 2018
Decision 16, 21–22, citing Inagaki 2, col. 2, 3, col. 2; Omure ¶¶ 12, 14; ’882
Patent, col. 6, ll. 54–60, col. 14, l. 40 – col. 15, l. 6; THIRD PARTY
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RESPONDENT’S BRIEF TO PATENT OWNER/APPELLANT’S BRIEF,
filed April 30, 2015, “Resp’t Br.” 3–5; Req. Comm. 16–17. Upon
reconsideration, we are of the view that such evidence does not address what
one of ordinary skill in the art would have expected in providing such a
combination in the field of automobile air conditioning.
In this regard, we first note that a lack of a reasonable expectation of
success need not be expressly disclosed in the ’882 Patent, but rather may be
established through other evidence. Further, Inagaki discloses HFO-1234yf
and HFO-1234ze as substitutes for refrigerants such as R-12 in air cooling
systems generally, but does not specifically disclose or suggest use in AAC
systems specifically. While Palinchak’s disclosure of using R-12 in AAC
systems with PAG may provide a reason for one of ordinary skill in the art
to explore the combination of HFO-1234yf and HFO-1234ze of Inagaki with
PAG lubricants in AAC systems, as argued by Requester (see e.g.
Requester’s Respondent Brief 5, filed April 30, 2015), we are of the view
that given the special considerations enumerated above with respect to AAC
systems, one of ordinary skill in the art would not have had a reasonable
expectation of success in such combinations in such systems. Thus, while
Inagaki demonstrates a reasonable expectation would have existed in
combining HFO-1234yf or HFO-1234ze with PAG lubricants for other air
cooling applications generally, i.e., those without the additional requirement
of the AAC systems, there is a lack of reasonable expectation of success in
AAC systems. Requester’s mere citation that AAC systems may contain
heating pumps is insufficient to address the particular issues raised with
respect to AAC systems discussed above as opposed to other air cooling
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systems in general. Resp’t Br. 6, citing Burk et al. (US 6,843,312 B2, issued
January 18, 2005).
Moreover, we are not persuaded by Requester’s arguments that
Tsuchiya discloses that with respect to stability of HFOs in being exposed to
oxygen, in mobile air conditioners “there is little possibility of an air
(oxygen) entrapment problem.” Req. Comm. 11–12, citing Tsuchiya et al.
“Tsuchiya” US2011/0312101 A1, published December 22, 2011), ¶ 8, see
also Tsuchiya, ¶ 7. Initially, Tsuchiya published after the filing date of the
invention and thus is not probative of the skilled artisan’s understanding at
the time of the invention. Moreover, Requester does not address the other
concerns associated with AAC systems noted above, i.e., the use of flexible
rubber/elastomeric hoses and seals common in automobile air conditioning
systems but uncommon in other types of air conditioning; and the high rate
of leakage in automobile air conditioning systems relative to residential air
conditioning systems.
Although Requester references other proceedings involving
combinations of HFOs and lubricants where claims have been cancelled,
Requester does not adequately explain why such cases are relevant to the
claims in this case, which recite a method of cooling in AAC systems, and,
as discussed above, present specific problems that are different than general
uses of such a refrigerant combinations. See, e.g., Req. 41.77(e) Rep. 3
(FN1), 16–18.
Therefore, after reconsidering the evidence as a whole, we are
persuaded that one of ordinary skill in the art would not have had a
reasonable expectation of success in employing a combination of
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fluoroalkenes and lubricant as recited in the claims in a method of cooling
air in an automobile. Thus, we have reconsidered Patent Owner’s arguments
previously acknowledged, but found to be unpersuasive (DECISION ON
APPEAL mailed March 30, 2016, “2016 Decision” 10–16).
Accordingly, we reverse the rejections of claims 1–12, 14–17, 21–25,
28, 30–59, 61–63, 65–69, 76–79, 81, 82, 86, 125, and 127 as obvious over
the prior art as summarized below.

Requester’s Proposed 112 Rejection
Requester proposed a rejection for amended claims 1, 4, 31, and 35,
which were amended to be directed to a method of using HFO-1234yf in
automobile air conditioning system (AAC) with a lubricant. Req. Comm.
18–20. Requester contends the ’882 Patent lacks written description support
for the claims as amended because the ’882 Patent does not disclose HFO-
1234yf in conjunction with any lubricant, is not tested for stability with
metals, and is mentioned in the ’882 Patent as having worse energy
efficiency than all other compounds disclosed. Id. at 20. Requester argues
that because of Patent Owner’s repeated arguments that it is impossible to
know whether or not a refrigerant will work with a particular lubricant
without testing it, the claims as amended lack written description support for
a system that consists of HFO-1234yf with PAG. Id.
The Examiner did not adopt Requester’s proposed rejection because
the Examiner found the ’882 Patent describes compositions including at
least one fluoroalkene and a lubricant that can be used in connection with
automotive air conditioning systems and devices, and lists HFO-1234yf as a
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fluoroalkene and PAG as a commonly used refrigeration lubricant. Ex. Det.
38, citing ’882 Patent col. 4, ll. 1–18; col. 6, ll. 41–45 and 54–60, col. 7, ll.
29–34; and col. 16, ll. 60–65.
We agree with the Examiner that the proposed rejection by Requester
is not appropriate in this proceeding. First, in inter partes reexamination, the
original claim language is subject only to rejections based on patents and
printed publications. 35 U.S.C. §§ 301, 311 (pre-AIA). See In re NTP, Inc.,
654 F.3d 1268, 1275–76 (Fed. Cir. 2011) (“[O]ther challenges to the
patentability of original claims—such as qualification as patentable subject
matter under § 101 or satisfaction of the written description and enablement
requirements of § 112—may not be raised in reexamination proceedings.).
With respect to new language added to a claim by amendment in
reexamination, it is appropriate for the Examiner to consider whether such
new language has written description support in the claims under 35 U.S.C.
§ 112, first paragraph. Id. at 1276, n.6; see 37 C.F.R. § 1.552(a) (indicating
that only “subject matter added or deleted in the reexamination proceeding”
will be examined under 35 U.S.C. § 112). Nonetheless, Requester’s
arguments regarding written descriptive support do not address added claim
language and are directed to language that was present in the originally
patented claims instead. Indeed, the original claims recited the use of HFO-
1234yf and PAG in an automobile air cooling system (see e.g. claim 34 of
the ’882 Patent). Thus, we agree with the Examiner that the proposed
rejection by the Requester is not warranted. See MPEP § 2658(II); MPEP
§ 2258(II).

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CONCLUSION
In view of the discussion above, we reverse the grounds of rejection
of:
Claims 1–9, 11, 12, 14–17, 21–25, 28, 30–46, 50, 53–59, 61–63, 65–
69, 76–79, 81, 82, 125, and 127 under 35 U.S.C. § 103(a) as unpatentable
over Inagaki,5 or Inagaki in view of Palinchak,6 in view of Omure either
alone or further in view of the additional prior art cited by the Examiner (see
First Decision 47);
Claims 10, 47, 48, and 86 under 35 U.S.C. § 103(a) as unpatentable
over Inagaki, or Inagaki in view of Palinchak, in view of Omure, and further
in view of Magid7 (see First Decision 47; 41.77(f) Decision 8); and
Claims 49, 51, and 52 under 35 U.S.C. § 103(a) as being unpatentable
over Inagaki, or Inagaki and Palinchak, in view of Omure, further in
combination with Bivens8 and Magid (see First Decision 47; 41.77(f)
Decision 8).

5 JP H04-110388, published April 10, 1992, and naming Sadayasu Inagaki et
al. as inventors. All references to “Inagaki” are to the translation (certified
September 8, 2010) that was filed on November 8, 2011 with Requester’s
original Request for Inter Partes Reexamination.
6 US Patent 4,842,024, issued June 27, 1989 to Stephen Palinchak.
7 US Patent 4,755,316, issued July 5, 1988 to Hillel Magid et al. The
teachings of Magid were applied in the related reexamination cited at 2,
supra, on appeal (Appeal 2015-006430), and Magid is of record in the
present reexamination.
8 US Patent 6,783,691 B1, issued August 31, 2004 to Donald Bernard
Bivens et al.
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Outcome of Decision:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–9, 11,
12, 14–17,
21–25, 28,
30–46, 50,
53–59, 61–
63, 65–69,
76–79, 81,
82, 125,
127
103(a) Inagaki or Inagaki,
Palinchak in view
of Omure either
alone or further in
view of the
additional prior art
1–9, 11, 12,
14–17, 21–
25, 28, 30–
46, 50, 53–
59, 61–63,
65–69, 76–
79, 81, 82,
125, 127
10, 47, 48,
86
103(a) Inagaki or Inagaki
Palinchak, in view
of Omure, Magid
10, 47, 48,
86
49, 51, 52 103(a) Inagaki or Inagaki
Palinchak, in view
of Omure, Bivens,
Magid
49, 51, 52
Overall
Outcome
1–12, 14–
17, 21–25,
28, 30–59,
61–63, 65–
69, 76–79,
81, 82, 86,
125, 127

In accordance with 37 C.F.R. § 41.79(a)(4), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he new decision of the Board under § 41.77(f).” A request
for rehearing must be in compliance with 37 C.F.R. § 41.79(b). Comments
in opposition to the request and additional requests for rehearing must be in
accordance with 37 C.F.R. § 41.79(c)–(d), respectively. Under 37 C.F.R.
§ 41.79(e), the times for requesting rehearing under paragraph (a) of this
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section, for requesting further rehearing under paragraph (c) of this section,
and for submitting comments under paragraph (b) of this section may not be
extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141–144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after November
2, 2002 may not be taken “until all parties’ rights to request rehearing have
been exhausted, at which time the decision of the Board is final and
appealable by any party to the appeal to the Board.” 37 C.F.R. § 41.81. See
also MPEP § 2682 (8th ed., Rev. 8, July 2010).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

REVERSED; 37 C.F.R. § 41.77(f)

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PATENT OWNER:
HONEYWELL/FOX/BANNER
Patent Services
115 Tabor Road - PO Box 377
MORRIS PLAINS, NJ 07950

THIRD-PARTY REQUESTER:
RYAN KROMHOLZ & MANION, S.C.
Post Office Box 26618
Milwaukee, WI 53226